Public Interest

Immigrants Need Good Lawyers Too

The system is stacked against immigrants and shoddy lawyering only makes it worse.

By Sam Wright on April 14, 2015 11:03 am

The venerable law blog How Appealing recently highlighted the case of He v. Holder, in which a panel of the 7th Circuit rejected an immigrant’s attempt to obtain asylum and avoid being deported. This in itself is not particularly notable — the vast majority of immigration cases in the courts of appeals are decided in the government’s favor. More notable was the final paragraph of the court’s opinion, which effectively referred the petitioner’s lawyer to disciplinary counsel and indicated that the court would consider sanctions if the lawyer repeated the same mistakes in a future case.

So what did this lawyer do wrong?

Let’s back up a little bit and start with the petitioner, Shaohua He. He claims to have been a member of a Chinese religious group called the Shouters, The Shouters, apparently, are an evangelical Christian sect that uses a “non-standard edition of the Bible,” numbers in the hundreds of thousands, and has been labeled an illegal “evil cult” by the Chinese government. He says that in June 2006, he was trying to recruit new Shouters when he was arrested, held in detention for two weeks, and beaten several times. After being bailed out, He fled the country and traveled to New York via Indonesia and Canada. Eventually he ended up in Chicago, where he applied for asylum and other forms of immigration relief.

This could have been a straightforward enough asylum case — if He’s story is true, then he probably has a reasonable fear of persecution at the hands of the Chinese government on account of his religion, based on past persecution. It depends how severe the beatings were. But an immigration judge deemed He not credible based on his vague and inconsistent testimony and the absence of corroborating evidence. So He’s application was denied, and the Board of Immigration Appeals affirmed.

At this point He hired Scott Yu to represent him. Yu first filed a motion to reconsider with the Board of Immigration Appeals (a motion that the 7th Circuit deemed “frivolous”), and then — when the Board handed down its inevitable denial of that “frivolous” motion — filed a petition for review with the 7th Circuit. But here’s the problem: by the time the Board had denied He’s motion to reconsider, the 30-day window had closed for judicial review of the Board’s original order denying He relief. And though Yu filed a timely petition for review of the motion to reconsider, his argument to the court focused solely on the Board’s original order denying relief. Yu’s failure to address the motion to reconsider meant that issue was waived. So the court lacked jurisdiction over the original order and Yu waived argument on the motion to reconsider.

There were several consequences of this: He suffered a total loss in court. The government that represents you and me and our ideal of religious freedom will probably ship He to China, where he may or may not be persecuted for his religious beliefs. And Yu gets to explain to disciplinary counsel why he has repeatedly (at least three times, according to the 7th Circuit) filed frivolous reconsideration motions with the Board of Immigration Appeals, following each with a petition to the 7th Circuit that the court can’t consider at all.

So that’s what He’s lawyer did wrong. Why am I writing about it?

Well, I led off this column by noting that the government wins the vast majority of appeals from the Board of Immigration Appeals to the federal courts of appeals: its win rate was 89% in 2013, 84% in 2014, and 86% for January and February 2015. There’s a reason for those lopsided statistics, and it’s not just APA deference. (Query, by the way, whether that deference is warranted in immigration cases: one prominent immigration judge refers to her docket as “death penalty cases heard in traffic court settings” with huge caseloads and little support, leading to results that may well be systemically arbitrary.) It’s lack of adequate representation.

The pending caseload in United States immigration courts has risen steadily from 262,681 cases in fiscal 2010 to 418,861 cases in fiscal 2014. Each of these cases, of course, centers on the immigration status of a person. Most of these people want to be represented by a lawyer; many have trouble paying for one; some find one and some don’t. Free help exists but not to the same extent it does for other civil legal issues — I mentioned last week that there are a lot of restrictions preventing LSC-funded legal aid attorneys from representing immigrants. So private lawyers find ways to “fill” this gap with low-cost, shoddy work on behalf of unsophisticated clients. That’s not to say there aren’t good immigration attorneys out there. There are. But I’ve seen quite a few briefs supporting immigrants’ federal-court petitions for review, and most of them were terribly written and poorly argued, guaranteed losers. This squares with available data on the quality of immigration lawyering — one report suggested that about half the lawyers practicing in New York immigration courts in 2011 fell “below basic standards of advocacy.” The labyrinth of administrative law can be complicated, but it’s not that complicated.

Until legal aid or similar programs can fill this immigration-law gap with quality work — for example, if LSC funds could be used more broadly for the representation of immigrants in removal proceedings — the courts will continue to field appeals that are frivolous as a matter of process and they’ll be forced to rubber-stamp immigration-court decisions that may be deeply flawed as a matter of substance. And as a result of all this, immigrants — people — will suffer.

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].